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Publication Date

2014

Abstract

Imagine that a group of activist American journalists and lawyers launch a new Internet site called "AmeriLeaks." The site is incorporated as a nonprofit organization with its principal place of business in Washington, D.C. The announced purpose of the site is to provide an American alternative to the WikiLeaks site led by Julian Assange. AmeriLeaks encourages whistleblowers across the United States to post documents on the site exposing corruption and crime in government, with an emphasis on American foreign policy and national security issues. "American universities have launched Moocs-Massive Open Online Courses-and we are now launching a site for American Mools- Massive Open Online Leaks," the press release announcing the launch of the site proudly proclaims. One of the site's founding members, a civil liberties lawyer who once clerked for Supreme Court Justice William Brennan, invokes Justice Brennan's opinions in New York Times Co. v. Sullivanand New York Times Co. v. United States, asserting that "Justice Brennan would be proud.

This fictional scenario, which reads like the opening to a law school exam in a First Amendment or National Security Law course, forces focused thought on the moral and legal positions of those in government who leak confidential national security information. It focuses the same thought on the moral and legal positions of those in the "new-leak-media," such as WikiLeaks (or our fictional creation, AmeriLeaks), or legacy media, such as the New York Times or CNN, who publish those leaks to the world. This Essay begins with a summary restatement of the "pro- leak" and "anti-leak" positions in their strongest forms. It then reflects on the strengths and weaknesses of those two opposing positions and offers a number of pragmatic, moral, and legal judgments on how the conflicts they pose are most soundly resolved.

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